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Citation: 3 J. Contemp. Legal Issues 117 1989-1990

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The Dangers of ADR:

a Three-Tiered System of Justice

J. Contemp. Legal Issues

[3: 117, 1989-1990]

THE DANGERS OF ADR:

A THREE-TIERED SYSTEM OF JUSTICE*
ProfessorMichele G. Hermann **

I. INTRODUCTION
It is impossible to generalize the impact of alternative dispute resolution
(ADR) on access to justice in America. Nationwide development in the field of
ADR has not been uniform. ADR has been utilized in different ways, in
different degrees, and in different places around the country. Large urban
areas have borne the brunt of the so-called litigation explosion. There, under
the pressure of case volume, a multitude of diversions from traditional
litigation has been created. In less populous communities, the need for
dispute resolution alternatives has been less pressing, so development has
been slower and more sporadic. Across the nation, however, we are told that
the justice revolution has come. The various forms of ADR are hailed as
panaceas for a variety of social, moral and administrative ills. From court
congestion, to criminal recidivism, to unpaid child support, to over-reaching
litigiousness, to psychologic dissatisfaction, supporters tell us that ADR holds
the solutions. It is tempting to accept these glowing claims uncritically, but to
do so sacrifices attention to the pitfalls of alternative dispute resolution which
may impair its ability to provide access to justice in America.
As an ADR professional who teaches the skills of mediation,
arbitration, facilitation and negotiation, and who practices these skills in the
private and public sectors, I have been involved with ADR both institutionally
and individually. Through my work, I have come to worry that ADR may
impair equal access to justice. My conclusion is that ADR may contribute to a
three-tiered system of justice: the economically and politically powerful
purchase the highest quality alternate dispute resolution; some are left to the
courts; and the poor, disadvantaged, and politically powerless are shunted off
to high volume, court-annexed dispute resolution alternatives. Each of the
tiers presents its own problems for access to justice.
IL CADILLAC JUSTICE - PRIVATE ADR
A number of imaginative dispute resolution alternatives have been
developed to assist in the settlement of complex commercial and high-stakes
litigation. These include mini-trials, where the disputants' lawyers, under the
supervision of a neutral advisor, present abbreviated evidence to the parties
to aid in settlement; private judging, where the disputants choose which
adjudicator will decide their case; mediation, where the disputants designate
a neutral to assist with settlement; and arbitration, where the disputants may
select both the third-party decision-makers and the structure of the
arbitration. These processes have been praised for their speed, their
flexibility, their financial and emotional savings, their party-selected

J. Contemp. Legal Issues

[3: 117, 1989-1990]

The Dangers of ADR:

a Three-Tiered System of Justice

decision-makers, and their confidential nature. 1 Former ABA President

Robert Raven, however, points out that despite these real advantages, we
need to address the issue of whether private judging will divert the
economically advantaged from the public system, leaving the courts to the
poor and the criminally accused. 2 He worries that the courts will flounder,
left with the dregs of judges and staff, and with reduced economic and
political support.3 These concerns are legitimate. An exodus of the disputes
of the privileged could indeed siphon off the talent and energy required for
court reform. Additionally, allowing these litigants to divert themselves from
the public justice system could frustrate the development, determination and
articulation of
4 public rights and values which are viewed as central to formal
adjudication.
A primary function of the courts is to interpret and give force to social
values embodied in laws, statutes and the constitution. This result, which5
helps to structure the fabric of our lives, is lost in private ADR.
Furthermore, adjudication is a public system. It uses public resources to pay
the costs of officials who are chosen by a process in which the public
participates. Power is conferred by public law, not by private agreement.
Thus, there is visibility and public control in the court system.
The loss of these functions is magnified if it is primarily the rich and
powerful who can create their own personal dispute resolution mechanisms to
address their issues in a totally private and unpublished fashion. Imagine, to
take a contemporary dispute for an example, that Exxon and the State of
Alaska agreed to use private judging to settle the claims for environmental
destruction and damages caused by the recent Alaskan oil spill. The absence
of public proceedings, binding rulemaking, and articulated findings would be
a loss which all who are concerned about these issues would share. It would
allow the parties to avoid unfavorable publicity and curtail public scrutiny of
the hearings and the outcome of the case. Some disputes belong in the public
domain. There are real costs in allowing privileged 6disputants to purchase
their own custom-made private settlement procedures.

M. ADVERSARY JUSTICE "FORMAL ADJUDICATION"

Many of the critics of ADR regard the court system as the most
desirable forum for resolving disputes. Formal adjudication offers rules and
procedures which are seen as protecting women and minorities by limiting
discretion which could disguise decisions rooted in stereotyping, bias and
prejudice. 7 Similarly, formal adjudication is seen as bolstering weaker parties
with rule structures which protect the oppressed. 8 Judges are seen as using
judicial authority to balance the relative positions in cases when
there is an
9
imbalance of power or disparity of resources among the parties.
The proponents of adjudication, however, have some difficulty
documenting their claim that the courts are using their power to protect the
disadvantaged and minorities. 10
Indeed, their faith seems seriously
out-of-touch with the crisis in adjudication rooted in the much-discussed
litigation explosion."
One observer describes the current court system as

The Dangers of ADR:

a Three-Tiered System of Justice

J. Contemp. Legal Issues

[3: 117, 1989-1990]

permitting gross imbalances between litigants, tolerating lawyer

incompetence and party misbehavior, bowing to pressure to produce
outcomes, and acceptinqgillogical results produced by the adversarial parrying
of aggressive attorneys. 2
The poor are particularly at risk in the adversary system because there
are not sufficient resources available to meet their needs. 3 The legal service
programs which survive today are limited in funding and freedom to litigate,
and crowded court dockets make legal access for the poor even more
difficult. 14 Indeed, access to the legal system today demands time, money,
The critics of formal
energy and knowledge which many people lack.'
adjudication view courts as using their power not to balance inequities or to
protect the disadvantaged, but rather to protect judicial dockets with
jurisdictional and procedural rules. 16 Furthermore, there is empirical
evidence that courts are not effective at making and interpreting laws, or in
equalizing disparate resources. 17 Thus, it appears that despite the beliefs of
ADR critics, who look to formal adjudication as the preferred method of
dispute resolution, the courts are faltering in their ability to provide a just,
expeditious and accessible forum.
IV. POOR PEOPLES' JUSTICE - COURT-ANNEXED ADR
Many critics of formal adjudication look to public alternative dispute
resolution programs as the means for producing litigant satisfaction, reducing
court congestion and providing increased access to justice.
Courts
increasingly order mediation to resolve custody and visitation issues in
domestic relations cases. 18 The use of mediation in court-annexed programs
is also increasing in diverse areas ranging from small claims, to neighborhood
disputes, to juvenile cases, to criminal prosecutions, to a variety of civil
suits. 19
Similar goals of reducing costs, decreasing court congestion,
improving access, and increasing litigant satisfaction have inspired the
addition of court-administered arbitration to public ADR.
These
court-annexed arbitration programs use local attorneys, singly or in panels, to
hold private, informal hearinis in which the facts of a dispute are determined
in an abbreviated proceeding. 1 Courts are also experimenting with a variety
of other ADR devices, including settlement masters, facilitation programs,
and summary
jury trials, in their efforts to streamline the resolution of
22
disputes.
Proponents of court-annexed ADR programs describe the alternatives as
more efficient and less expensive than formal litigation, thus making just
resolution more accessible to a greater range of disputants.2 3 Others praise
the informal processes as more flexible, allowing for a broader definition of
both problems and solutions. This flexibility achieves more creative results
which produces
greater party satisfaction and preserves ongoing
24
relationships.
However, public ADR proceedings are as vulnerable to criticism as are
private judging and formal adjudication. Some of the negative observations
regarding court-annexed ADR can best be understood as institutional. On a

J. Contemp. Legal Issues

[3: 117, 1989-1990]

The Dangers of ADR:

a Three-Tiered System of Justice

macro-political scale, we are warned that the informal nature of ADR inhibits
change by sacrificing the open airing of social and political grievances in order

to attain individual peace and cooperation. 25 When disputants are "cooled

26
out", their energy is drained from collective action.
The result is that
discontent is siphoned away from the courts, and political confrontations
are
27
reduced, thereby preserving the power and stability of the state.
A second group of concerns regarding public ADR relates to
fundamental fairness. For instance, some critics believe that women will fare
poorly in court- ordered mediation, because their less-powerful, economically
disadvantaged status will be perpetuated in this informal process. 28 Because
the results of mediation are private, non-appealable, and non-enforceable,
critics fear the rights of women and children will be diminished. Family
disputes will be trivialized in these extra-judicial proceedings, while the legal
system is reserved for corporate and other "important" disputants. 2 9 Others
worry that minorities will be badly treated in alternative processes because
there are no formal mechanisms to control the impact of bias, stereotyping or
prejudice. 30 These concerns, that the invisibility of informal processes may
put the disputants at the mercy of the unexamined value systems of the
dispute resolvers, merit serious consideration. To address them by imposing
the checks and balances of formal adjudication would sacrifice the speed and"
flexibility which are at the heart of ADR. Thus, only increased training of
dispute resolution providers and careful monitoring of results offer the
possibility of preserving what is best in ADR while attempting to minimize its
risks.
A related set of concerns about public ADR has to do with the
competence of the providers. Court-annexed arbitration programs face hard
choices in order to survive. Either they must raise their fees or they must
give up panels and use only single arbitrators, who often lack special skills.
In the end, court-annexed arbitration may produce "an award based on a
perfunctory presentation by the parties and an evaluation by a panel of three
non-specialized lawyers." 3 This contributes to fears that arbitration "with its
abbreviated procedures and rapidly decided outcomes, will produce 'second
class' justice." 32
The concern that those who participate in court-annexed mediation may
receive second-class justice is also legitimate. Often these programs utilize
volunteers3 3 who receive little supervision, have minimal training, and lack
legal information and experience. 35 What a disputant is willing to settle for is
a poor standard for measuring the fairness of results in these cases. Parties
may compromise out of ignorance, frustration or a desperate desire for closure
at any cost. 36 In custody disputes, courts frequently utilize full-time
professional mediators, who may possess better skills and more accurate
information than volunteers, but whose effectiveness is often hampered by
case load, time pressures,
and the artificial exclusion of critical issues such as
37
property and support.
Finally, there are legitimate concerns that these limitations in quality of
delivery in public ADR programs may have a disproportionate impact on the
poor. Poverty may make a person more vulnerable to the weaknesses of ADR

The Dangers of ADR:

a Three-Tiered System of Justice

J. Contemp. Legal Issues

[3: 117, 1989-1990]

because there is no right to receive legal advice before, during or after the
process. This may leave disadvantaied disputants ignorant about their rights
and options within the legal system. 8 The poor also lack the ability to access
the private dispute resolution mechanisms available at the top: the skilled
mediator who has no restrictions on time or issues, the outstanding
arbitrators with special expertise, the best retired judges to hear the case and
render a decision. Their only recourse is to accept whatever the system
directs them to use as a dispute resolution mechanism. Certainly, this does
not constitute equal access to justice.
V. CONCLUSION
At its best, ADR offers custom-made procedures, flexible, expeditious
processes, and disputants who are satisfied with both the method and the
result. At its worst, ADR damages the public functions of adjudication while
it oppresses and exploits the disadvantaged. As with most polarities, the
reality lies somewhere in between. Currently, our legal system is
overburdened and is not functioning well, resulting in substantial pressures
for efficiency and reform. ADR is, in some measure, a product of these
pressures. If we accept it uncritically as a speedy, economical solution, the
end results will be a mixed bag of mediocre alternatives which do not improve
access to justice but rather multiply the avenues to injustice. If, on the other
hand, we recognize that both formal adjudication and informal processes
urgently require greater resources, closer study, clearer organization and
better scrutiny of results, and if we move to meet these needs, we may indeed
increase access to justice rather than merely increasing access to disposition.

ENDNOTES
This paper was originally prepared for presentation at the ABA 1989
annual meeting.
**
Professor of Law, University of New Mexico School of Law.
1.
S. Goldberg, E. Green, & F. Sander, Dispute Resolution 285-290 (1986)
(hereinafter Goldberg).
2.
Raven, PrivateJudging:A Challenge to Public Justice, A.B.A. J., Sept. 1,
1988 at 8.
3.
Id.
4.
Fiss, Against Settlement, 93 Yale L. J. 1073, 1089 (1984).
5.
Id. at 1085.
6.
Resnick, FailingFaith:Acjudicative Procedure in Decline, 53 U. Chi. L.
Rev. 494 (1986), notes that "many defendants (and their attorneys) in
products liability and antitrust cases.., now seem intrigued by ADR as a
means for protecting themselves from negative publicity and outcomes they
have disliked." Id. at 538. See also, Galanter, The Day After the Litigation
Explosion, 46 Md. L. Rev. 3 (1986).
*

J. Contemp. Legal Issues

[3: 117, 1989-1990]

The Dangers of ADR:

a Three-Tiered System of Justice

7.
Delgado, ADR and the Dispossessed:Recent Books About the
DeformalizationMovement (Book Review), 13 Law and Social Inquiry 145,
152 (1988).
8.
Delgado, Dunn, Brown, Lee, & Hubbert, Fairnessand Formality:
Minimizing the Risk of Prejudicein Alternative Dispute Resolution, 1985 Wis.
L. Rev. 1359, 1394-1395 (hereinafter Delgado).
9.
Fiss, supra note 4, at 1077-1078.
10.
Menkel-Meadow, Forand Against Settlement: Uses and Abuses of the
Mandatory Settlement Conference, 33 UCLA L. Rev. 485, 499-504 (1985).
11.
Burger, Isn't There A Better Way?, 68 A.B.A. J. 274 (1982). Other
authorities believe that the problem is not excessive litigation per se, but
rather a rapid growth in cases filed, coupled with increased complexity,
prohibitive cost, and delay in using the courts. National Institute For
Dispute Resolution, Paths To Justice: Major Public Policy Issues On Dispute
Resolution, 7-8 (1983). Still others believe that there has been no real
litigation explosion. Galanter, Reading the Landscape of Disputes: What We
Know and Don't Know (and Think We Know) About Our Allegedly
Contentious and Litigious Society, 31 UCLA L. Rev. 4 (1983).
12.
Resnick, supra note 6, at 544-545. It is significant. that, despite these
misgivings, the author still expresses substantial mistrust of informal
settlement mechanisms and urges that "we resist the effort to translate
judicial exhaustion into rules or practices that devalue adjudication but offer
no constrained decision making procedure to take its place." Id. at 556.
13.
Nader, Disputing Without the Force of Law, 88 Yale L.J. 998 (1979). It has
been estimated that 1% of our population receives 95% of the legal services
provided. National Institute For Dispute Resolution, supra note 11, at 8.
14. Willrich, Resolving the Legal Problems of the Poor:a Focus on Mediation
in Domestic Relations Cases, 22 Clearinghouse Rev. 1373, 1378 (1989).
15.
Nader, supra note 13, at 998.
16. Friedman, Legal Rules and the Processof Social Change, 19 Stan. L.
Rev. 786, 798-810 (1967); see also New Law Erects Barriersto the Federal
Docket, N.Y. Times, May 12, 1989, (The Law), at B 12.
17. Menkel-Meadow, supra note 10, at 504. See also Galanter, Why the
'Haves' Come Out Ahead: Speculationson the Limits of Legal Change, 9 Law
& Soc'y 95 (1974).
18.
Willrich, supra note 14 at 1375; Teitelbaum & DuPaix, Alternative Dispute
Resolution and Divorce:NaturalExperimentationin Family Law, 40 Rutgers
L. Rev. 1093 (1988).
19.
N. Rogers & R. Salem, A Student's Guide to Mediation and the Law 1-4
(1987).
20.
Pearson, An Evaluationof Alternatives to Court Adjudication, 7 Just. Sys.
J. 420, 439-441 (1982).
21.
Coulson, The Coming Evolution in Court-AdministeredArbitration,69
Judicature 276 (1986).
22.
Goldberg, supra note 1, at 3-13.
23. Delgado, supra note 8, at 1366.

The Dangers of ADR:

a Three-Tiered System of Justice

J. Contemp. Legal Issues

[3: 117, 1989-1990]

24. Menkel-Meadow, supra note 10, at 487.

25. R. Abel, The Politics of Informal Justice 267 (1982).
Delgado, supranote 7, at 150-151.
26.
27.
J. Aurbach, Justice Without Law? 144 (1983).
28.
Lefcourt, Women, Mediation and Family Law, 18 Clearinghouse Rev. 266,
267-269 (1984).
29.
Woods, Mediation:A Backlash to Women's Progresson Family Law Issues,
19 Clearinghouse Rev. 431, 435-436 (1985).
30.
Delgado, supra note 7, at 154.
Coulson, supra note 21, at 276.
31.
Hensler, What We Know and Don't Know About Court-Administered
32.
Arbitration,69 Judicature 270, 275-278 (1986).
33.
L. Riskin, Dispute Resolution and Lawyers 197 (1987).
34.
J. Murray, A. Rau, & E. Sherman, Processes Of Dispute Resolution
276-279 (1989); SPIDR Commission on Qualifications,DraftIssues and
PreliminaryPrinciples(1988); Comment, The Dilemma of Regulating
Mediation, 22 Hous. L. Rev. 841 (1985).
35.
Riskin, supra note 33, at 232.
36.
Hofrichter, Neighborhood Justice and Social Control, Problems of
American Capitalism:A Perspective, in Abel, supra note 25, at 207; but ef
McEwen and Maiman, Mediation in Small Claims Court:Achieving
Compliance Through Consent, 18 Law & Soc'y Rev. 11 (1984).
37.
Willrich, supra note 14, at 1375.
38.
Willrich, supra note 14, at 1377.

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